025-NLR-NLR-V-21-MUTTU-RAMAN-CHETTY-et-al.-v.-MOHAMMADU-et-al.pdf
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Present: De Sampayo J. and Schneider A.J.
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MUTTU EAMAN CHETTY et al. v. MOHAMMADTJ et al.
144—D. C. Kurunegala, 1,998.
Subsequent order—Civil Procedure Code, s. Si7—Amendment of decree—Mortgage decree w decree for payment of money.
The “ subsequent order ” contemplated in section 387 (b) of theCivil Procedure Code is one which may be made under the provi-sions of sections 320, 322, 331, and 335 of the Code for the recoveryby execution of a sum of money sb damages in default of compliancewith the substantial decree either to deliver movable property or to do orabstain from doing some specified act.
A Court has no jurisdiction to amend or alter its decree, except inconformity with section 189, Civil Procedure Code.
A mortgage decree is a decree for the payment of money withinthe meaning of section 337, Civil Procedure Code.
r£iHE facts appear from the judgment.
A. Drieberg, for defendants, appellants.
Samarawickreme, for plaintiffs, respondents.
Cur. adv. vult.
March 17, 1919. Schneideb A.J.—
In this case, on December 15, 1902, a mortgage decree was enteredin favour of the plaintiffs. The decree directed that the defendantsshould jointly and severally pay a sum of money, and in default ofsuch payment that the mortgaged property should be sold by theFiscal in satisfaction of the decree, and if the proceeds of such saleshould be insufficient, that the balance was to be recovered byexecution levied upon any other property of the defendants. This 'is the usual form of decree, except, perhaps, for the direction thatthe sale was to be held by the Fiscal. Apparently no steps weretaken under the decree till January, 1911, at which date mostof the original parties were dead. Application on behalf of theplaintiffs was then made by petition for substitution of parties inplace of those deceased. Inter alia, the applicants prayed that thesecond defendant should be substituted as the legal representativeof the deceased first defendant, alleging that he was the brotherand heir of the deceased, whose share of the property mortgagedwas below Bs. 1,000 in value, and that he was in possession of theproperty of the deceased. They also prayed that execution shouldissue against the second defendant personally, and also as such legal
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representative. This part of the application is extraordinary, and,in my opinion, should never have been allowed. The facts allegeddo not constitute the second defendant the legal representative ofthe deceased defendant, nor is the. application for writ in order(vide sections 394 and 224 of the Civil Procedure Code).
The second defendant filed a statement of objections to thisapplication.' He pleaded, among other matters, that the decree hadbeen satisfied by payment. Eventually he consented1 to the substi-tution of parties and the issue of writ upon the condition that “ nowarrant of arrest should issue against him in the event of the balancedue under the decree not being recovered. ” This was on November2, 1911, in the ordinary form given in Schedule II. of the Code, thatis, to levy execution upon the property of the defendants withoutspecial mention of the mortgaged property. Under the writ theFiscal seized four of the lands mortgaged, and applied to the Court, inMuy, 1912, for an extension of the writ to enable him to sell them.The returnable date of the writ was then extended to December 31,
but on December 20, 1912, it was returned to Court by theFiscal with a report to the effect that it could not be executed, as theplaintiffs had failed to deposit the fees necessary for advertisingthe sale. Before this report a claim had been made to one of thelands seized, and was reported to Court in June, 1912. This claimwas upheld after an inquiry on May 22, 1913. On February 3,
the plaintiffs moved for. a re-issue of the writ, which was dis-allowed on the ground that a fresh writ should issue; but on May 12,
• 1913, the plaintiffs’ motion to be allowed to purchase the propertyseized and for credit was granted. Evidently upon this order theFiscal sold three of the lands seized, and reported the sale to Courtin June, 1913. The next step in execution was an application forwrit made on March 9, 1917. To this application two objectionswere taken, (namely., (1) that due deligfence to procure completesatisfaction of the decree upon the last preceding application hadnot been exercised; (2) that a period of ten years had expired fromthe date of the decree. These objections are founded upon theprovisions of section 337 of the Code.
After hearing argument the District Judge made order allowingthe application, with costs. This appeal is from that order. Thelearned District Judge holds that the period of ten years should bereckoned from November 2, 1911, and not from the date of thedecree (December 15, 1902), because the order of November 2, madewith the consent of the defendant, was “ a subsequent order, ” suchas is contemplated under section 337 (b). I am unable to agreewith him. A Court has no jurisdiction to alter or amend its decree,except in conformity with the provisions of section 189 of the Code,in order to bring the decree into harmony with the judgment or torectify a clerical or arithmetical error. The “ subsequent order ”contemplated in section 337 (b) is one which may be made under the
( *> )provisions of sections 320, 322, 334, and 335 of the <3ode, for therecovery by execution of a sum of money as damages in default ofcompliance with the substantial decree, either to deliver movableproperty or to do or abstain from doing some specified act. Plaintiff-respondents’ counsel did not attempt to support the order upon thisreason given by the learned District Judge. The second reasongiven by the District Judge is that the debtor’s false plea of paymentof the decree, made in order to gain time, was an act which preventedthe plaintiffs recovering their money. The District Judge hererefers to the payment pleaded by tbe second defendant against thefirst application for writ. This reason, too, does not appear to me agood one for allowing the plaintiff’s application.
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No serious attempt was made to support it at the argument ofthis appeal. Section 337 permits an application for execution afterthe ten-year time limit being granted by a Court, “ where thejudgment-debtor has by fraud or force prevented the execution ofthe decree. ”
Respondents’ counsel wanted us to give an extensive inter-pretation to the term “ fraud, ” and cited Fernando v. Latibu,1where this had been done. There it was held that the systematicevasion of service of process by a debtor by which execution wasprevented was “ fraud ” within the meaning of the section. But,however extensive the meaning placed on fraud be, it is not possibleupon the facts in this case to hold that there has been fraud. Evengranting that the plea of payment was false, and that such a pleaamounts to fraud (neither of which is correct), the plea did not in factprevent execution. On the contrary, the defendants’ consent tothe order of November 2, 1911, was a step in aid of execution forwrit issued on the 18th of that month. The- respondents’ counsel’smain endeavour to support the District Judge’s order was founded,not upon the reasons given by the District Judge, but upon quiteother ground. He submitted that a mortgage decree was not “ adecree for the payment of money ” in so far as its character of amortgage decree was concerned, and that, therefore, in so far as thedecree declared the properly mortgaged bound and executable andliable to be sold, it did not come within the purview of section 337of the Code. He sought to differentiate this case from the case ofpon Jacovis v. Per era 2 and of Silva et al. v. Singho et al., 3 by thefact that in both these cases the application was to recover the balancedue on the decree after the mortgaged properties had been discussed.But it is beyond doubt that the ground of the decision in both thosecases was the same, namely, that a mortgage decree was a decreefor the payment of money (meaning thereby the whole of the sumdecreed) within the meaning of section 337, although it containsthe other elements which constitute it a mortgage decree.
{1906) 9 N. L. R. 166 ; 3 Bal. 118.
2 {1910) 13 N. L. R. 113.
1 {1914) 18 N. L. R. 95.
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In bis judgment in the earlier case, Laseelles A.C.J. said: " Weare asked to hold that a mortgage decree is not a decree for thepayment of money within the meaning of section 387 of the CivilProcedure Code, and that, consequently, the District Judge waswrong, in acting under that section. In order to decide whether thedecree in this section falls under the designation of a decree for thepayment of money, there is no better test than the language of thedecree itself. The decree orders the defendant to pay the plaintiffEs. 282, with interest and costs, within one month from date, and indefault of payment directs the sale of the hypothecated, properly.It would be doing violence to the language employed to hold thatsuch a decree is .not a decree for the payment of money. It clearlyis a decree for the payment of money as well as a mortgage decree,and there is no reason why such a decree should not be consideredto be, what it plainly is, a decree for the payment of money. ”
In the latter case, Hutchinson C.J. said:“ The appellants first
contended that the decree in this case is not ‘ a decree for the pay*ment of money, ’ and that, therefore, the requirement of section 337of the Civil Procedure Code as to ‘ due diligence ’ does not apply.I have no doubt that it is a decree for payment of money. It beginsby ordering the defendants to pay the whole debt. It is true thatit directs that in default of payment it is to be enforced in a particularmanner in the first instance, viz., by sale of the mortgaged property;but none the less it has decreed the payment. I agree on this pointwith Don Jacovis v. Perera. 1 The facts in. that case are not fullyreported, but I have seen the record. The decree was in 1892, and-was like the one in the present case; writ was issued in 1893, not forthe sale of the mortgaged property, but against the debtor’s propertygenerally; the plaintiff obtained an order for its re-issue in 1902,but did not actually re-issue it, and took no further steps till 1906.The Court held that the decree was for payment of money. ” I feelnot only bound by these decisions, but, if I may venture to say so,I am in entire accordance with] them. It seems to me that there isno indication in the Code of any intention to treat mortgage decreesdifferently in regard to time limitations for execution. It was alsoargued by respondents’ counsel that as the decree contained adirection that the Fiscal should sell the mortgaged property, therewas no necessity for an application for execution to be made underchapter XXII of the Code, and that, therefore, section 337 would notapply, as that section only deals with applications to execute decreesmade under that chapter. Whatever substance there may be in thisargument as a general proposition, it is inapplicable in this case, asthe applications for execution were in fact made under chapter XXII.The question whether the plaintiffs’ application should be disallowedbecause due diligence had not been used to procure completesatisfaction of the decree on the last preceding application has not
1 (1906) 9 N. L. R. 166; 3 Bal. US.
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been dealt with by the learned District Judge. If it had beennecessary to consider it here, I would have held that the plaintiffs *application should be disallowed on this ground also.
I would, .therefore, set aside the order appealed from, and dismissthe plaintiffs’ application, with costs in both Courts.
Ds Sampayo J.—I agree.
Set aside.
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MuttuRamanOhetty c.Mohammad**